103 N.W. 637 | N.D. | 1905
On February 11, 1901, an information was filed in the district court of Cavalier county by the state’s attorney of that county, charging the defendant with the murder of one Andrew Mellem, alleged to have been committed on the 3d day of January, 1901. The defendant was tried in the following July, and the jury returned a verdict of guilty of murder in the first degree, and fixed.his punishment at life imprisonment. Tire judgment entered in pursuance thereof was reversed for prejudicial errors occurring at the trial, and the defendant was remanded for a new trial. State v. Barry, 11 N. D. 428, 92 N. W. 809. The second trial was commenced at Langdon, Cavalier county, on the 3d day of November, 1903, before the Honorable John F. Cowan, acting at the request of Honorable W. J. Kneeshaw, judge of said district. The jury was impaneled and sworn on the 16th day of November, 1903. Evidence was submitted; arguments made, and the jury charged with the defendant’s delivery on the 28th day of November, 1903, at 9 o’clock a. m., and thereafter, at 11:30 p. m. on the same day, the jury returned into court a verdict finding the defendant guilty of murder in the second degree, and fixing his punishment therefor at a period of seven years in the penitentiary. The court refused to accept this verdict, and returned it to the jury. The jury, having failed to return any other or different .verdict, was discharged by the court on the 30th day of November, 1903, and the defendant was remanded to the custody of the sheriff without bail. Thereafter the state, over defendant’s objection, secured a change of the place of trial to Walsh county, and the trial commenced on May 31, 1904. A't the opening of the trial the defendant interposed the pleas of former jeopardy, former acquittal, and former conviction, in addition to his previous plea of not guilty, and presented proper proof in support of such pleas. These pleas were severally overruled by the trial judge, and, under his direction, the jury found against
Counsel for defendant relies entirely upon the pleas of former jeopardy, former acquittal and former conviction as grounds for reversal. The proof offered in support of these pleas shows that at the previous trial the court instructed the jury that they might, under the law and evidence, return a verdict either for murder in the first degree or murder in the second degree; that the penalty for murder in the first degree was either death or life imprisonment, and for murder in the second degree imprisonment in the penitentiary not less than ten nor more than thirty years; and that it was their duty to designate the punishment. It also shows that on November 28, 1903, the jury, after having retired and deliberated from 9 o’clock a. m. to 11:30 p. m., returned into court, when they were asked by the presiding judge if they had agreed upon a verdict, and the foreman answered that they had, and presented the following verdict: “State of North Dakota, County of Cavalier. In District Court, Seventh Judicial District. The State of North Dakota, plaintiff, vs. William Barry, defendant. Verdict: We, the jury in the above-entitled action, find the defendant, William Barry, guilty of the crime'of murder in the second degree as charged in the information, and we do hereby fix and determine that he shall be imprisoned in the penitentiary for the term of seven (7) years as his punishment tiherefor. E. E. Sherwin, Foreman.” The trial judge refused to accept this verdict, and instructed the jury as follows: “I cannot accept the verdict which you have presented to the court, as it does not conform to any one of the verdicts which you may bring in under the evidence in this case, and the law as laid down by the court to you. Carefully read the instructions which I have heretofore given to you, that you may learn the proper verdict and the several penalties laid down by the law as I have declared it to you. I return to you the proposed verdict submitted by you to this court. I also submit to you another blank verdict of the same form and substance as the one returned. When you return the verdict you may agree upon, use pen and ink in signing it.” Thereafter, in answer to requests, the following instructions were given: “In answer to your written request for further instructions as to the law in the case now before you, I charge you that the date of the information in this action has noth
The question of the legality of the judgment under which the defendant is now confined, and from which this appeal is prosecuted, is raised by several assignments of error. It is perhaps most clearly presented by the refusal of the trial judge to give the following instructions which were requested by the defendant: “The defendant, William Barry, has been heretofore, at a regular term of the district court of the county of Cavalier, in this state, begun and held at Langdon, in the month of November, 1903, arraigned and pleaded under the information upon which he is now on trial. The court so held in Cavalier county was a competent court to try the defendant, and had full jurisdiction of the defendant, and of the offense for which he was arraigned, and to which he pleaded not guilty. The information upon which he was tried was sufficient in form and substance to support a verdict by the jury. The jury was duly impaneled and sworn, testimony both for the state and defendant was offered and heard, arguments were made by the counsel for the state and the defendant, the jury was instructed by the court, charged with the deliverance of the prisoner, and the entire matter submitted to the jury for its verdict. Such jury was duly impaneled and sworn, and the trial of the defendant commenced on the 16th day of November, 1903, and continued thereafter until the 28th day of November, 1903, when the jury so impaneled, sworn and charged, returned into court with a verdict. * * * The verdict rendered by the jury found the defendant, William Barry, guilty of murder in the second degree, and sentenced him to imprisonment in the state penitentiary for a period of seven years, and was a valid and legal verdict.” It is
“If the jury return a verdict of guilty against the accused, the court must before it is accepted ascertain whether it conforms to the law of the case. If, in the opinion of the- court, the verdict does not conform to the requirements of the law of the case, the court must, with proper instructions as to the error, direct the jury to reconsider the verdict, and the verdict cannot be accepted or recorded until it is rendered in proper form. But, if the punishment imposed by the jury in the verdict, in cases where the jury are authorized by law to determine the punishment, is not in conformity to the law of the case in that regard, the court may proceed as follows:
“(1) If the punishment imposed by the jury in the verdict is under the limit prescribed by law, for the offeaase of which the*327 defendant is found guilty, the court may receive the' verdict and thereupon render judgment and pronounce sentence for the lowest limit prescribed by law in such cases; or,
“(2) If the punishment imposed by the jury in the verdict is greater than the highest limit prescribed by law, for the offense of which the defendant is found guilty, the court may disregard the excess and render judgment and pronounce sentence according to the highest limit prescribed by law in the particular case.”
We are of the opinion that the appellant’s contention is sound and must be sustained. The proviso contained in the section just quoted, which excepts verdicts which do not conform to the law of the case in respect to the punishment imposed from the class of verdicts which may be returned to the jury, was first introduced in this jurisdiction in the revision of 1895. That part of the section which confers upon trial judges the general power to return verdicts with proper instructions when in their, opinion they do not conform to the law of the case is in substance but a re-enactment of section 7431, Comp. Laws 1887, which is also perpetuated without change in section 8248, Rev. Codes 1899. The proviso, however, is new, and it is entirely, clear that the purpose of the legislature in adding it was to take verdicts in which the only objectionable feature relates to the extent of the punishment affixed out of the class of verdicts which the court is authorized to return to the jury for reconsideration.
The verdict in question in this case, it will be seen, responds directly to the issue of defendant’s guilt or innocence of the crime with which he was charged. It finds 'him “guilty of the crime of murder in the second degree,” and in this respect is not subject to criticism. In fixing the period of defendant’s punishment, however — and this is the only objectionable feature — it designates seven years, which is less than the minimum period for murder in the second degree. Tjhe question, then, is whether the verdict, notwithstanding this fact, is, in view of the proviso contained in section 8246, supra, a legal and valid verdict. In our opinion, this question must be answered in the affirmative. It is just such a verdict as is described in that section. It is unobjectionable, save that it fixes a shorter period of punishment than is authorized by statute for murder in the second degree. In the latter respect it did not conform to the law of the case. That fact, however, does not make it either insufficient or illegal, for the legislature, in the section just referred to, has removed verdicts like this from the
It does not admit of doubt that had the trial judge in this case received the verdict and pronounced judgment upon it for the minimum period of punishment prescribed for murder in the second degree — that is, ten years — as the legislature has declared he may do, the judgment would have been in all respects regular and lawful. This is conceded by the counsel for the state. Their contention is, however, that it is optional with the trial judge whether he will or will not exercise the power which is given by this statute. It is said that the statute is not mandatory, but permissive, and that he may act under it or disregard it at his option. We are all agreed that this contention cannot be sustained. Section 8246, supra, clothes trial judges with power to pronounce judgment upon verdicts like the one in question. As to this there is no controversy. But does it do more than merely create the power ? Does it not in fact impose the duty? We are clear that it does. True, the language in which the power is conferred is permissive in form, but that fact is not controlling. The question as to whether a statute is mandatory or directory depends upon the intent of the legislature, and not upon the language in which the intent is clothed. “The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.” Black on Interpretation of Law, section 124.
It follows from what we have said, that the verdict returned by the jury upon the former trial and on November 28, 1903, was in all respects a legal and valid verdict, and that it was the duty of the trial judge to receive the same and to enter judgment upon it for the minimum period fixed by the legislature for murder in the second degree, to wit, ten years, and that the subsequent trial and verdict was without authority of law and void, and the trial court exceeded its authority in sentencing the defendant to life imprisonment. The only valid verdict was that of November 28, 1903, and the punishment designated by the legislature under that verdict was ten years. Although judgment was not entered upon that verdict, the defendant has been restrained of his liberty because of it, and the period of his lawful imprisonment must therefore be deemed to have begun when judgment should have been entered. See State v. Snyder, 98 Mo. 555, 12 S. W. 369.
Instead of directing the entry of a new judgment nunc pro tunc as of the date of the verdict, we have concluded to modify the judgment appealed from. The district court is accordingly directed to modify its judgment so that the period of defendant’s imprisonment will be the same as it would have been if the ten-year sentence had been imposed upon the return of the former verdict, November 28, 1903, and, as thus modified, the judgment will be affirmed.
